Impartiality and constitutional adjudication.
Published: 2005
Language: eng
Number of pages: 364
Description: Against this ideal conception of impartiality, which is theoretically available even in the absence of clear rules, the dissertation examines judicial decisions so as to test the courts' record of impartiality in the  Charter era. The cases are in the areas of aboriginal rights, and social rights. Throughout, aspects of the judges' reasons which can be explained by the influence of an impartiality ideal are explained, and their implications explored.Impartiality is generally considered an irrelevant consideration in explaining judicial decision-making under the Charter of Rights . Impartiality is supposed by many to be demonstrated by following rules, and the Charter does not provide clear legal rules for its own application. For this reason and others, political scientists have paid scant attention to the possibility that judges may yet remain impartial as they decide on the constitutionality of laws subject to a Charter  challenge.The dissertation concludes that judges have not been reliably impartial in the Charter era, although there are trends in the jurisprudence which speak of the influence of an impartiality ideal. In particular, the concept of justified limits on rights has exerted a far greater influence than might otherwise be expected. It is ironic, then, that the most grievous and widespread partialities in the courts' general treatment of aboriginal and social rights claims spring from a one-sided application of the justified limits analysis. The courts have generally given interests claimed as the basis for rights-limiting laws much more considerate treatment than those which underlie the rights claims themselves.The dissertation offers an alternative conception of adjudicative impartiality which does not depend on the pre-existence of clear rules, but which is yet recognizable as a legal ideal. Impartiality may be understood in the sense of equal consideration---balancing the competing harms and benefits at stake for individual parties in the case at hand. This in turn requires an element of consistency---ensuring that relevantly similar people are treated similarly under the law, and relevantly different people treated differently, proportionate to their differences.
Notes: Source: Dissertation Abstracts International, Volume: 66-10, Section: A, page: 3788.

Thesis (Ph.D.)--University of Toronto, 2005.

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